Before It Was A Tax, It Was Not A Tax
It's like "a kind of practical joke that the court is playing on the public," says Paul Clement (who represents the 26 states that are challenging the law). (Personal note: I teach the law school course Federal Jurisdiction, and this "anti-injunction" topic — by chance — is up for discussion this week.)
In the Supreme Court, the administration suggested that the justices appoint an outside lawyer to argue that the [Anti-Injunction Act] bars the challenges. The justices asked Robert A. Long to do so, and he goes first on Monday.... Mr. Long says the 1867 law is “jurisdictional,” meaning it forbids courts to hear suits even if, as here, neither side objects....It's not a tax whenever you don't want it to be, and it is when you do. That's the administration's argument! And that's what the NYT — in the linked article by Adam Liptak — calls "potential tension." (Cue the comments: This is why people hate lawyers.)
In the health care law, Congress called the required payment a penalty rather than a tax. But the penalty is contained in the Internal Revenue Code, and the health care law says it is to be “assessed and collected in the same manner” as a tax....
[Solicitor General Donald B.] Verrilli’s argument that the penalty is not a tax for purposes of the 1867 law is in potential tension with one he will make on Tuesday, that the mandate was authorized not only by Congress’s power under the commerce clause but also by its power to levy taxes.Mr. Verrilli argues that the name that Congress gave the payment required for violating the mandate in the health care law —a penalty, not a tax — matters for purposes of the 1867 law but is irrelevant in connection with the constitutional taxing power, where “it is the practical operation of the provision, not its label, that controls.”